Hydraulic Fracturing: Green Solution or Red Flag?
What's green and red and controversial all over? If you ask people from California to Pennsylvania, the answer will likely be hydraulic fracturing or "fracking" for natural gas and oil. Hydraulic fracturing is a technique that has been used in the United States since 1947 and involves the high pressure injection of millions of gallons of water, sand and chemicals into ground wells in order to extract natural gas or oil from fissures deep within shale deposits below the Earth's surface. Once the liquid and sand are deposited into the ground the gas or oil is released and flows out of the well. In recent years the debate over hydraulic fracturing has reached a fever pitch and the question remains, is fracking a green solution that reduces our carbon footprint and creates jobs across the United States, or is it a process that harms both the environment and humans alike?
Fracking supporters cite strong evidence in support of their position, including what some consider strict regulation of hydraulic fracturing by both the Federal government and certain individual state governments. Most significantly, the Environmental Protection Agency ("EPA") stated in 2004 that hydraulic fracturing does not pose a serious risk to groundwater. Moreover, hydraulic fracturing produces jobs in the United States and lowers our dependence on foreign oil. Proponents also argue that fracking permits the use of fewer wells, thus resulting in a smaller surface footprint and producing a much greater amount of energy than has been produced in the past using other means. Through the creation of clean burning energy, utility bills to the consumer are reduced as well as feedstock prices for manufacturing goods. More importantly, the use of fracking allows humans to tap into an otherwise unreachable and unutilized natural resource.
Despite the information cited above, in recent years there has been an influx of claims relating to fracking in Arkansas, Colorado, Louisiana, New York, Pennsylvania, Texas and West Virginia. To date, however, no fracking-related action is believed to have reached final judgment. The majority of the suits filed to date contain claims of property damage and personal injury, most notably allegations of serious health issues arising from human consumption of contaminated drinking water. Claims thus far have been filed against private companies under a theory of negligence as a result of deficient well casings which purportedly allow fracking fluids to seep into groundwater and cause fires by gas flare burns from leaked methane gas. Other liability theories include negligence per se and breach of contract due to violations of governing rules, regulations and safety procedures; fraudulent misrepresentation alleging that drilling companies misled the public; and trespass based on allegations that fracking liquids entered neighboring property. There have also been claims filed in Arkansas, Ohio, Oklahoma and Texas alleging that minor earthquakes and seismic events in those areas are linked to fracking, resulting in property damage.
While California has not yet developed rules or reporting requirements for hydraulic fracturing, California state officials recently released details of a plan to undertake a statewide tour in order to receive public comment on the extraction technique. Although there have not been many claims filed to date in California, it is believed that the state is a likely place for substantial future litigation in this area. In addition to claims based on
violations of federal regulations and state claims based on property damage and personal injury, it also appears that fracking claims in California may emerge in the coming years based on allegations that fracking in parts of the state have lowered homeowners' property values. To date, we are unaware of any briefings or rulings in any fracking case filed in California courts.
Although claims related to fracking are on the rise nationwide, forecasting the viability of the various claims asserted in these suits is still under investigation given the lack of formal decisions issued in these cases. While the short and long term effects of hydraulic fracturing are still being debated, it seems reasonable to expect that there will be increased regulation in the coming months and years in California and other states, as well as increased public attention and education on the technique.